In this era of democratisation, constitution making plays a key role in determining the legitimacy and acceptability of new nations, particularly those emerging from conflict. This report from the United States Institute of Peace examines recent experiences of constitution making, emphasising the emerging international consensus around the need for participatory processes. Participatory constitution making can provide a forum for reconciling divisions, negotiating conflict and redressing grievances. Process has joined outcome as a necessary criterion for legitimating new constitutions.
Constitution making is no longer viewed solely as the legal and expert drafting of a contract by a technically qualified elite. Rather, its conceptualisation and practice is developing into an open-ended conversation between all the members of a political community. To secure a constitutional settlement among deeply divided parties requires a conversational approach. Negotiation between elite representatives may be easier to manage, but its outcomes will always lack legitimacy in the new democratic paradigm. A democratic constitution is no longer simply one that establishes democratic governance; its making is the expression of the democratic process at work.
The fundamental right to public participation in constitution making is slowly emerging through various international declarations and conventions, but nevertheless, actual experiments in participatory constitution making are surging ahead. Countries like Canada, Nicaragua, Uganda, Brazil, South Africa, and Kenya have invited public participation into constitutional deliberations. Findings include that:
- At its best, participatory constitutionalism works and counteracts the arguments in support of elite negotiation as the sole effective mode. At its worst, as in Zimbabwe, it provides only another guise for the exercise of raw power.
- South Africa’s constitution is often regarded as a model for democratic constitution making, embodying both the benefits and challenges of participation. It is a lengthy process and difficult to manage effectively, but it pays dividends in its ability to engender negotiation between factions and give women the opportunity for political engagement.
- Participatory processes have overcome literacy and language barriers and racial and ethnic exclusions. In most cases they have facilitated the very visible inclusion of women.
- Women’s presence across all party lines and demographic categories sometimes enables them to unite, or to resolve disputes across otherwise sharp dividing lines.
- There is not yet an agreed set of standards for participatory constitution making that would both satisfy the advocates of ‘authentic’ participation and be enforceable in law.
Genuine public participation in constitution making requires social inclusion, personal security, and freedom of speech and assembly. A strong civil society, civic education, and good channels of communication between all levels of society facilitate this process. Only a considerable commitment of time and resources will make genuine public participation possible. Further implications are that:
- Modes of participation vary considerably – there is no one model appropriate to all nations. Public opinion may be sought through a variety of channels. It may involve use of the media and the design of materials to make constitutional issues accessible in multiple languages regardless of literacy levels.
- A democratic constitution cannot be written for a nation, nor can one be written in haste without breaching the requirements democratic process
- Interim or transitional constitutions that include guarantees for a continuing, open and inclusive process for the longer term offer one solution to urgent needs for a framework of governance in new, divided, or war-torn nations.
